Citation Nr: 0917380
Decision Date: 05/08/09 Archive Date: 05/19/09
DOCKET NO. 08-00 277 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUE
Entitlement to service connection for chronic obstructive
pulmonary disease.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran, W.B.
ATTORNEY FOR THE BOARD
M. Katz, Associate Counsel
INTRODUCTION
The Veteran served on active duty from September 1943 through
December 1945.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a May 2007 rating decision by the
Department of Veterans Affairs (VA) Regional Office in
Roanoke, Virginia (RO).
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2)
(West 2002).
FINDING OF FACT
The medical evidence of record does not relate the Veteran's
chronic obstructive pulmonary disorder (COPD) to active
service.
CONCLUSION OF LAW
COPD was not incurred in or aggravated by active military
service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38
C.F.R. §§ 3.303 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
With respect to the Veteran's claim, VA has met all statutory
and regulatory notice and duty to assist provisions. See 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West
2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
3.326 (2008). Prior to the initial adjudication of the
Veteran's claim, the RO's letters dated in July 2006 and
March 2007 advised the Veteran of the foregoing elements of
the notice requirements. 38 U.S.C.A. § 5103(a); 38 C.F.R. §
3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). Further, with respect to the Veteran's claim, the
purpose behind the notice requirement has been satisfied
because the Veteran has been afforded a meaningful
opportunity to participate effectively in the processing of
his claim, to include the opportunity to present pertinent
evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir.
2007); Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir.
2007) (holding that although notice errors are presumed
prejudicial, reversal is not required if VA can demonstrate
that the error did not affect the essential fairness of the
adjudication).
Moreover, the Veteran's service treatment records, VA medical
treatment records, VA examination reports, and identified
private medical records have been obtained. 38 U.S.C.A. §
5103A; 38 C.F.R. § 3.159. Although the Veteran reported that
he sought medical treatment from Dr. Fleischman shortly after
service discharge, he indicated that those treatment records
are not available. There is no indication in the record that
any other additional evidence relevant to the issue decided
herein is available and not part of the claims file. See
Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is
no indication that any failure on the part of VA to provide
additional notice or assistance reasonably affects the
outcome of this case, the Board finds that any such failure
is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537,
542-43 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
Service connection may be granted for disability due to a
disease or injury which was incurred in or aggravated by
active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In
addition, service connection may be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
In order to establish service connection for a claimed
disorder, the following must be shown: (1) medical evidence
of a current disability; (2) medical, or in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and (3) medical evidence
of a nexus between the claimed in-service disease or injury
and the current disability. Hickson v. West, 12 Vet. App.
247, 253 (1999); see also Pond v. West, 12 Vet App. 341, 346
(1999).
The Veteran's service treatment records reveal that at
service separation, he complained of a dull ache in his right
lower chest anteriorly for the prior year and occasional
sharp pain on deep breathing. A chest x-ray was negative,
and physical examination of the Veteran's lungs and
cardiovascular system were normal. The Veteran's service
treatment records are otherwise negative for any complaints
of or treatment for a lung disorder.
Private treatment records from May 1995 through February 2007
reveal the Veteran's complaints of and treatment for COPD. A
May 1995 treatment record reflects that the Veteran had
occasional asthma. In September 1998, the Veteran complained
of sharp chest pains on the left side of his chest in the T3-
T4 area. He also noted some shortness of breath while hiking
the day before. The diagnosis was atypical chest pain. In
July 2001, the Veteran complained of chronic exertional
dyspnea. A January 2004 treatment record reveals a diagnosis
of mild COPD. A July 2001 chest x-ray showed a mild degree
of cardiomegaly, without evidence of acute cardiopulmonary
disease. An October 2001 carotid duplex ultrasound revealed
bilateral nonstenotic cervical carotid occlusive disease with
intimal thickening. A July 2006 treatment record reveals
that the Veteran had mild COPD and complained of mild
exertional dyspnea. He indicated that he was no longer able
to hike and be as active as he used to be. He denied
wheezing. The diagnosis was mild COPD.
VA treatment records from June 2001 through March 2008 also
reveal complaints of and treatment for COPD. A February 1994
chest x-ray was normal. In June 2001, the Veteran complained
of breathing difficulties and asthma. He noted a history of
cough productive of clear sputum, with little production and
symptoms for 10 years. The Veteran reported easy shortness
of breath, cough, no hemoptesis, and no night sweats. He
denied chest pain and dyspnea on exertion, but noted
occasional paroxysmal nocturnal dyspnea. There was no
orthopnea, palpitations, or extremity pain. The diagnosis
was COPD. A September 2002 treatment record revealed the
Veteran's complaints of bronchitis during the summer. A
November 2003 treatment record notes the Veteran's complaints
of congestion with clear phlegm. A November 2003 chest x-ray
showed clear lungs and COPD. The diagnosis was allergic
rhinitis. In April 2005, the Veteran complained of cough,
shortness of breath, and a lot of phlegm. The diagnosis was
chronic cough, and it was noted that the cough could be an
element of asthma with COPD. An April 2005 chest x-ray
showed limited inspiration and no major infiltrate. In
January 2006 and August 2007, the Veteran reported that he
was breathing better, but complained of chronic shortness of
breath, cough, and hemoptysis. The diagnosis was COPD. An
August 2006 carotid duplex ultrasound revealed the right
carotid system to have soft plaque formations in the internal
carotid producing a mild to moderate degree of stenosis. The
left carotid system showed an external carotid stenosis with
normal internal carotid flaws. Vertebral and subclavical
flaws were normal. An August 2007 treatment record also
notes a diagnosis of COPD.
In May 2008, the Veteran underwent a VA examination. He
reported a history of pain in his right lung during service,
noting that he "toughed it out" and did not seek treatment
during service. He reported that he smoked cigarettes before
service, but quit smoking before service entry. The Veteran
stated that he began coughing up flecks of blood about 1.5
years after service discharge, and that he has had a chronic
dry cough since that time. He also complained of coughing up
a teaspoon of clear sputum every morning. He reported that
he does not cough up blood now, but noted some dyspnea on
exertion. He denied asthma and never had pneumonia.
Physical examination revealed the Veteran to be well-
developed and well-nourished. His heart was normal and his
lungs were clear. A chest x-ray showed the lungs to be
hyperinflated due to mild COPD. The heart was normal. The
diagnosis was mild COPD. After thoroughly reviewing the
Veteran's claims file, interviewing the Veteran, and
performing a physical examination, the VA examiner concluded
that it was "more likely than not" that the Veteran's mild
COPD was not related to or caused by his active duty service.
The VA examiner explained that COPD was a problem that
develops after many years of irritation of the lungs and
because the Veteran's COPD was mild and there was no evidence
of continuity of care for his for his development of COPD, it
was "more likely than not" that his present mild COPD was
not related to his active duty service.
The Board recognizes that the Veteran served our country
during World War II, and fought at the Ardennes-Alsace
campaign, known as the Battle of the Bulge, through the
forested Ardennes Mountains region of Belgium, with the
temperature during January 1945 being the coldest on record.
The veteran testified that when he was in Belgium he was
sleeping out in the cold, and that was when he first started
feeling an ache in his right lung. Thereafter, he began
coughing up sputum flecked with blood. The Veteran further
testified that after service discharge, he continued to cough
up sputum flecked with blood, and was treated by a family
doctor until he started receiving treatment at the VA in the
1980s. The Board finds the Veteran's testimony to be
credible, and this testimony is competent evidence that he
had these symptoms while in service and was treated for them
subsequent to service discharge.
However, a VA examiner in May 2008, after a thorough review
of the Veteran's service treatment records, an interview with
the Veteran, and physical examination of the Veteran,
concluded that it was "more likely than not" that the
Veteran's mild COPD was not related to his active duty
service.
The Board also acknowledges the Veteran's testimony and his
belief that his current COPD is related to the conditions of
his military service. However, medical diagnosis and
causation involve questions that are beyond the range of
common experience and common knowledge and require the
special knowledge and experience of a trained physician. As
the Veteran is not a medical professional, the Veteran's
statements are not competent evidence that his currently
diagnosed COPD is related to service. Espiritu v. Derwinski,
2 Vet. App. 492, 495 (1992); Grottveit v. Brown, 5 Vet. App.
91, 93 (1993). Accordingly, as there is no medical evidence
that the Veteran's COPD was incurred in or is otherwise
related to his military service, or that the symptoms that he
experienced in service are related to his current COPD,
service connection for COPD is not warranted.
In this, and in other cases, only independent medical
evidence may be considered to support Board findings. The
Board may not base a decision on its own unsubstantiated
medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171,
175 (1991).
Finally, in reaching this decision the Board considered the
doctrine of reasonable doubt, however, as the medical
evidence does not find that the Veteran's current COPD is not
related to his military service, the preponderance of the
evidence is against the Veteran's claim, the doctrine is not
for application. Gilbert v. Derwinski, 1 Vet. App. 49
(1990).
ORDER
Service connection for COPD is denied.
____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs